FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 10, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court RYAN DAVID BURKE,
Petitioner - Appellant,
v. No. 18-4132 (D.C. No. 2:16-CV-00285-RJS) ALFRED BIGELOW, (D. Utah)
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before TYMKOVICH, Chief Judge, BALDOCK and HARTZ, Circuit Judges. _________________________________
Ryan David Burke, a Utah state prisoner, seeks a certificate of appealability
(COA) to challenge the district court’s dismissal of his 28 U.S.C. § 2254 application for a
writ of habeas corpus and subsequent motion to alter or amend the judgment under
Fed. R. Civ. P. 59(e). We deny a COA and dismiss this matter.
I. BACKGROUND
Burke attended a high school reunion with a friend he had known since middle
school. Burke left his car at the friend’s house because the friend had agreed to give him
a ride to and from the reunion. But the friend decided to stay the night at the reunion
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. venue, and in the early morning hours of September 16, 2007, Burke got a ride back to
the friend’s house with other acquaintances. When Burke arrived at the house, he told
the friend’s sister, who was babysitting the friend’s four-year-old daughter, that he had
been given permission to stay overnight. The sister (the child’s aunt) told Burke that he
could sleep on a couch in the basement.
While in the basement, Burke ordered several pornographic movies on cable
television at 1:30, 3:00, 3:30, and 8:20 a.m., respectively. They were “on demand”
movies and could therefore be fast-forwarded.
The child, who was sleeping with her aunt, got up in the middle of the night and
went downstairs. She told a police investigator that Burke “had been watching a
‘grownup movie’ [that] included oral sex scenes,” and when “it was night outside,” he
“forced her to touch his penis.” Aplt. App., Vol. II at 330. Although she also described
what may have been a scene in one of the movies—that she saw a ball drop on a person’s
head—she never explicitly tied the time of her abuse to any particular scene or movie. At
trial, the investigator testified that the fourth “movie (ordered at 8:20 a.m.) had a scene
with a man being struck on the head with a cane.” Id.
Later that morning, Burke was told to leave. He took his friend’s checkbook,
“drove to a store and cashed three of the checks. The first check was time-stamped at
9:18 a.m.” Id.
Burke was convicted by a jury of aggravated sexual abuse of a child, forcible
sexual abuse, and dealing in material harmful to a minor. His convictions were affirmed
on appeal, see State v. Burke, 256 P.3d 1102 (Utah Ct. App. 2011), and the Utah Supreme
2 Court denied certiorari review on September 28, 2011. Burke did not petition the United
States Supreme Court.
On September 4, 2012, Burke—represented by new counsel—filed a state post-
conviction petition in which he argued that he was denied effective assistance of counsel
when trial counsel failed to investigate a potential alibi defense. The court agreed and
vacated his convictions. The State appealed and the Utah Court of Appeals reversed. It
concluded that trial counsel’s performance did not fall below an objective standard of
reasonableness “because the information counsel possessed at the time he decided not to
further investigate the alibi indicated that the alibi pertained to only a fraction of the
relevant time period and could have opened the door to the introduction of prejudicial
evidence”—forgery charges that Burke’s trial counsel successfully severed from the
sexual offense charges. Burke v. State, 342 P.3d 299, 307 (Utah Ct. App. 2015). In other
words, the court found there was no constitutional violation. The Utah Supreme Court
denied certiorari review on May 13, 2015.
On April 8, 2016, Burke filed his application for habeas relief. As grounds, Burke
argued that he “received ineffective assistance of counsel because Defense Counsel at the
time of his trial failed to investigate a potential alibi defense. Mr. Burke could not have
committed the crimes because he was at a gas station and grocery store at the time the
[victim] testified the crimes occurred.” Aplt. App., Vol. I at 11. “Further, current
counsel has obtained a traffic engineering report showing that Mr. Burke could not have
been at the residence at the times the [victim] testified the crimes occurred because he
was many miles away.” Id.
3 The State moved to dismiss Burke’s application as untimely. In response, Burke
argued that the statute of limitations did not begin to run until August 20, 2012, when he
first discovered the factual predicate for his claim. Alternatively, he argued that because
he was actually innocent, the limitation period did not apply. The district court rejected
both arguments and granted the State’s motion.
Burke promptly retained new counsel who filed a motion to alter or amend the
judgment under Fed. R. Civ. P. 59(e). As grounds, Burke argued, for the first time, that
instead of raising a manufactured claim that the factual predicate for his habeas claim was
not discovered until August 2012, Burke’s counsel should have confessed to egregious
misconduct—that he miscalculated the filing deadline—and asked the court to toll the
statute of limitations due to this extraordinary circumstance. The district court denied the
motion because it was a new argument that Burke could have raised earlier. The court
also denied Burke’s request for a COA.
II. LEGAL BACKGROUND
A. Certificate of Appealability
To appeal, Burke must first obtain a COA. 28 U.S.C. § 2253(c)(1)(A); Miller-El
v. Cockrell, 537 U.S. 322, 335-36 (2003). To receive a COA, Burke must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Because the district court denied Burke’s habeas application on procedural grounds, he
must show (1) “that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right,” and (2) “that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Slack v.
4 McDaniel, 529 U.S. 473, 484 (2000). “Each component of [this] showing is part of a
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 10, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court RYAN DAVID BURKE,
Petitioner - Appellant,
v. No. 18-4132 (D.C. No. 2:16-CV-00285-RJS) ALFRED BIGELOW, (D. Utah)
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before TYMKOVICH, Chief Judge, BALDOCK and HARTZ, Circuit Judges. _________________________________
Ryan David Burke, a Utah state prisoner, seeks a certificate of appealability
(COA) to challenge the district court’s dismissal of his 28 U.S.C. § 2254 application for a
writ of habeas corpus and subsequent motion to alter or amend the judgment under
Fed. R. Civ. P. 59(e). We deny a COA and dismiss this matter.
I. BACKGROUND
Burke attended a high school reunion with a friend he had known since middle
school. Burke left his car at the friend’s house because the friend had agreed to give him
a ride to and from the reunion. But the friend decided to stay the night at the reunion
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. venue, and in the early morning hours of September 16, 2007, Burke got a ride back to
the friend’s house with other acquaintances. When Burke arrived at the house, he told
the friend’s sister, who was babysitting the friend’s four-year-old daughter, that he had
been given permission to stay overnight. The sister (the child’s aunt) told Burke that he
could sleep on a couch in the basement.
While in the basement, Burke ordered several pornographic movies on cable
television at 1:30, 3:00, 3:30, and 8:20 a.m., respectively. They were “on demand”
movies and could therefore be fast-forwarded.
The child, who was sleeping with her aunt, got up in the middle of the night and
went downstairs. She told a police investigator that Burke “had been watching a
‘grownup movie’ [that] included oral sex scenes,” and when “it was night outside,” he
“forced her to touch his penis.” Aplt. App., Vol. II at 330. Although she also described
what may have been a scene in one of the movies—that she saw a ball drop on a person’s
head—she never explicitly tied the time of her abuse to any particular scene or movie. At
trial, the investigator testified that the fourth “movie (ordered at 8:20 a.m.) had a scene
with a man being struck on the head with a cane.” Id.
Later that morning, Burke was told to leave. He took his friend’s checkbook,
“drove to a store and cashed three of the checks. The first check was time-stamped at
9:18 a.m.” Id.
Burke was convicted by a jury of aggravated sexual abuse of a child, forcible
sexual abuse, and dealing in material harmful to a minor. His convictions were affirmed
on appeal, see State v. Burke, 256 P.3d 1102 (Utah Ct. App. 2011), and the Utah Supreme
2 Court denied certiorari review on September 28, 2011. Burke did not petition the United
States Supreme Court.
On September 4, 2012, Burke—represented by new counsel—filed a state post-
conviction petition in which he argued that he was denied effective assistance of counsel
when trial counsel failed to investigate a potential alibi defense. The court agreed and
vacated his convictions. The State appealed and the Utah Court of Appeals reversed. It
concluded that trial counsel’s performance did not fall below an objective standard of
reasonableness “because the information counsel possessed at the time he decided not to
further investigate the alibi indicated that the alibi pertained to only a fraction of the
relevant time period and could have opened the door to the introduction of prejudicial
evidence”—forgery charges that Burke’s trial counsel successfully severed from the
sexual offense charges. Burke v. State, 342 P.3d 299, 307 (Utah Ct. App. 2015). In other
words, the court found there was no constitutional violation. The Utah Supreme Court
denied certiorari review on May 13, 2015.
On April 8, 2016, Burke filed his application for habeas relief. As grounds, Burke
argued that he “received ineffective assistance of counsel because Defense Counsel at the
time of his trial failed to investigate a potential alibi defense. Mr. Burke could not have
committed the crimes because he was at a gas station and grocery store at the time the
[victim] testified the crimes occurred.” Aplt. App., Vol. I at 11. “Further, current
counsel has obtained a traffic engineering report showing that Mr. Burke could not have
been at the residence at the times the [victim] testified the crimes occurred because he
was many miles away.” Id.
3 The State moved to dismiss Burke’s application as untimely. In response, Burke
argued that the statute of limitations did not begin to run until August 20, 2012, when he
first discovered the factual predicate for his claim. Alternatively, he argued that because
he was actually innocent, the limitation period did not apply. The district court rejected
both arguments and granted the State’s motion.
Burke promptly retained new counsel who filed a motion to alter or amend the
judgment under Fed. R. Civ. P. 59(e). As grounds, Burke argued, for the first time, that
instead of raising a manufactured claim that the factual predicate for his habeas claim was
not discovered until August 2012, Burke’s counsel should have confessed to egregious
misconduct—that he miscalculated the filing deadline—and asked the court to toll the
statute of limitations due to this extraordinary circumstance. The district court denied the
motion because it was a new argument that Burke could have raised earlier. The court
also denied Burke’s request for a COA.
II. LEGAL BACKGROUND
A. Certificate of Appealability
To appeal, Burke must first obtain a COA. 28 U.S.C. § 2253(c)(1)(A); Miller-El
v. Cockrell, 537 U.S. 322, 335-36 (2003). To receive a COA, Burke must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Because the district court denied Burke’s habeas application on procedural grounds, he
must show (1) “that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right,” and (2) “that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Slack v.
4 McDaniel, 529 U.S. 473, 484 (2000). “Each component of [this] showing is part of a
threshold inquiry, and a court may find that it can dispose of the application in a fair and
prompt manner if it proceeds first to resolve the issue whose answer is more apparent
from the record and arguments.” Id. at 485. The procedural issue is frequently the easier
one to resolve. See id.
B. The Statute of Limitations and Actual Innocence Exception
There is a one-year limitations period to file a § 2254 habeas application.
See 28 U.S.C. § 2244(d)(1). The limitation period typically beings to run on “the date on
which the judgment became final by the conclusion of direct review or the expiration of
the time for seeking such review.” § 2244(d)(1)(A).
Nonetheless, “a credible showing of actual innocence may allow a prisoner to
pursue his constitutional claims . . . on the merits notwithstanding the existence of a
procedural bar to relief,” such as the statute of limitations. McQuiggin v. Perkins,
569 U.S. 383, 392 (2013). “This rule, or miscarriage of justice exception, is grounded in
the equitable discretion of habeas courts to see that federal constitutional errors do not
result in the incarceration of innocent persons.” Id. (internal quotation marks omitted).
However, “tenable actual-innocence gateway pleas are rare: ‘[A] petitioner does
not meet the threshold requirement unless he persuades the district court that, in light of
the new evidence, no juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.’” Id. at 386 (quoting Schlup v. Delo, 513 U.S. 298, 329
(1995)). “[T]he Schlup standard is demanding. The gateway should open only when a
petition presents evidence of innocence so strong that a court cannot have confidence in
5 the outcome of the trial unless the court is also satisfied that the trial was free of
nonharmless constitutional error.” Id. at 401 (internal quotation marks omitted).
In determining whether the petitioner has made the required showing, “the habeas
court must consider all the evidence, old and new, incriminating and exculpatory, without
regard to whether it would necessarily be admitted under rules of admissibility that would
govern at trial.” House v. Bell, 547 U.S. 518, 538 (2006) (internal quotation marks
omitted).
C. Rule 59(e)
“The purpose of a Rule 59(e) motion is to correct manifest errors of law or to
present newly discovered evidence.” Monge v. RG Petro-Mach. (Grp.) Co., 701 F.3d
598, 611 (10th Cir. 2012) (brackets and internal quotation marks omitted). “Grounds for
granting a Rule 59(e) motion include (1) an intervening change in the controlling law,
(2) new evidence previously unavailable, and (3) the need to correct clear error or prevent
manifest injustice.” Id. (internal quotation marks omitted). A Rule 59(e) motion,
however, “is not [the] appropriate [vehicle] to . . . advance arguments that could have
been raised in prior briefing.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000).
III. ANALYSIS
Burke does not challenge the district court’s determination that the one-year
statute of limitations expired on September 4, 2015, and therefore, his April 8, 2016
application was untimely. Also, Burke agrees the court correctly determined there was
no merit to his argument that he did not discover the factual predicate for his habeas
6 claim until August 2012. See Aplt. Appl. for COA/Opening Br. at 19 (“[T]he district
court swiftly, and correctly, rejected [counsel’s] newly discovered evidence argument[.]”
(emphasis added)). Instead, Burke maintains that he established his actual innocence for
purposes of opening the gateway because based on the new evidence proffered in the
state court post-conviction proceedings, no juror, acting reasonably, would have found
him guilty beyond a reasonable doubt.
A. The Actual Innocence Gateway Claim
Burke argued that a traffic engineer’s report put him several miles away from the
house when the offense occurred. To establish the purported alibi, Burke pointed to the
child’s police interview in which she said that a movie she watched with Burke showed a
ball or object dropping on a man’s head, and he attempted to tie a scene with a man being
struck on the head with a cane in the final movie he ordered at 8:20 a.m. to the offense.
He then cited an affidavit submitted in the state court post-conviction proceeding that
established the “cane” scene “occurred at 34 minutes 7 seconds into the film,” Aplt. App.,
Vol. II at 337 (internal quotation marks omitted), and argued that the child could not have
seen the man being struck on the head until at 8:54 a.m. at the earliest. The final link in
Burke’s purported alibi was the traffic engineer’s determination that it would have taken
a minimum of twenty-seven minutes to get from the house to the store where he cashed
the first check at 9:18 a.m. Therefore, Burke argued that because he would have to had
left the house before 8:54 a.m. to cash the check at 9:18 a.m., he had an alibi.
The district court found that Burke’s “purported alibi is no alibi at all because it
does not cover the entire time of the sexual offense.” Id. at 338 (internal quotation marks
7 omitted). In light of the child’s “statement that she was abused while oral-sex scenes
were on—which applied to all the movies [Burke] ordered—‘the possible alibi could only
have exonerated [Burke] for acts committed after 8:20 a.m. at the earliest, leaving a
more-than-six-hour window for [Burke] to have committed the sexual offenses.” Id.
(quoting Burke, 342 P.3d at 305) (emphasis omitted). “And the trial evidence strongly
suggested that the abuse, in fact, occurred before 8:20 a.m.” Id.
More the point, the district court found that even if Burke “had a potential alibi
defense, he has not shown that, if [the alibi evidence had been] presented at trial, no
reasonable juror would find him guilty beyond a reasonable doubt.” Id. at 339. In other
words, Burke failed to “establish that it would be unreasonable for any juror not to accept
his view of the evidentiary underpinnings of his alleged alibi.” Id. Indeed, like the Utah
Court of Appeals, the district court found that Burke “would face significant obstacles in
presenting a believable alibi defense at a trial.” Id. (citing Burke, 342 P.3d at 307).
First, the district court acknowledged that the child told the police that she saw a
ball drop on a man’s head. But “[f]or [Burke’s] alibi to have traction, he would need to
convince jurors that [the child’s] statement could refer only to the scene in the fourth
movie in which a man was hit on the head with a bamboo stick or a cane.” Id. (internal
quotation marks omitted) (emphasis added). To the contrary, “a reasonable juror could
conclude that a ball —a round object—dropping on a man’s head could not possibly refer
to a movie scene where a man is hit in the head with a stick or cane—a long, straight
object.” Id.
8 Second, the district court noted that Burke “would have to present convincing
evidence that the sexual abuse occurred only during the movie scene when a man is hit on
the head with a cane.” Id. (emphasis added). However, “because [the child] did not link
the time of the abuse to any particular scene in any of the movies . . . a reasonable juror
could conclude that the abuse could have occurred earlier in the morning while a different
pornographic movie was playing.” Id. (internal quotation marks omitted).
Third, the district court explained that Burke would have to argue that the fourth
movie was not fast-forwarded. “But again, because a cable company representative
testified that the movie could be fast-forwarded . . . reasonable jurors could disagree . . .
and conclude that the movie scene where a man was hit on the head with a cane played
earlier than 8:54 a.m. because it was fast-forwarded.” Id. (internal quotation marks
Last, the district court observed that Burke would have to convince the jurors that
he had to have left the house before 8:45 a.m. to reach the store in time to forge a check
at 9:18 a.m. But even though the shortest drive time recorded by the traffic engineer was
twenty-seven minutes, those “calculations assumed [among other things] that [Burke]
drove [the] speed limit[], . . . [he] stopped at a[] . . . gas station for five-and-a-half
minutes, and . . . took [nearly four] minutes to make his purchase at the grocery store,”
before cashing the first check at 9:18 a.m. Id. (brackets and internal quotation marks
omitted). Again, the court found that although jurors could agree that Burke left the
house before 8:54 a.m., jurors looking at the facts could also reasonably disagree and
9 conclude that Burke left later than 8:45 a.m. and still had time to get to the store to cash
the first check at 9:18 a.m.
The district court concluded that “[b]ecause reasonable jurors could disagree with
[Burke’s] evidentiary view that he contends establishes an alibi defense, he has not
shown that no reasonable juror would find him guilty beyond a reasonable doubt.” Id.
Stated otherwise, Burke’s failure to “show[] that he is actually innocent,” precludes him
from “us[ing] the miscarriage-of-justice exception to the . . . period of limitation.” Id.
As this discussion makes clear, Burke has failed to demonstrate that jurists of
reason would find it debatable whether the district court was correct in its procedural
ruling that his § 2254 application was time-barred.
We further reject Burke’s argument that the court should have held an evidentiary
hearing. Setting aside the fact that it is unclear whether Burke ever requested a hearing,
the court considered all the evidence that Burke maintained demonstrated his actual
innocence, and thus the court did not abuse its discretion by failing to conduct a hearing.
See Anderson v. Att’y Gen. of Kan., 425 F.3d 853, 858 (10th Cir. 2005) (“A district
court’s decision to grant or deny an evidentiary hearing in a habeas proceeding is
reviewed for an abuse of discretion.”).
B. Denial of the Rule 59(e) Motion
After the district court granted the State’s motion to dismiss, Burke’s newly
retained counsel filed a Rule 59(e) motion, which raised, for the first time, an argument
that because habeas counsel missed the filing deadline, Burke received ineffective
10 assistance of counsel, or alternatively, counsel’s mistake was an extraordinary
circumstance that tolled the statute of limitation.
The district court recognized that a court may alter or amend a judgment only “if
there is ‘(1) an intervening change in the controlling law, (2) new evidence previously
unavailable, [or] (3) the need to correct clear error or prevent manifest injustice.’” Aplt.
App., Vol. II at 366 (quoting Servants of the Paraclete, 204 F.3d at 1012). The court
then found that none of those grounds were present; instead, Burke was improperly
raising arguments that could have been, but were not, raised in response to the State’s
motion to dismiss.
Because it is clearly inappropriate to use a Rule 59(e) motion to advance a new
argument that was previously available, see Servants of the Paraclete, 204 F.3d at 1012,
Burke has failed to demonstrate that jurists of reason would find it debatable whether the
district court was correct in denying his Rule 59(e) motion.
IV. CONCLUSION
Burke had not shown that reasonable jurists could debate the correctness of the
district court’s denial of his § 2254 application and his Rule 59(e) motion. Thus, we deny
his request for a COA and dismiss this matter.
Entered for the Court
Bobby R. Baldock Circuit Judge